England and Wales Care Standards Tribunal

 


Edwards v Secretary Of State for Children, Schools and Families [2008] EWCST 1311(PC) (06 August 2008)

PATRICK EDWARDS

-v-

SECRETARY OF STATE FOR CHILDREN, SCHOOLS AND FAMILIES

[2008] 1311.PC

APPLICATION BY RESPONDENT TO STRIKE OUT THE APPEAL

DECISION

-before-

Mrs. Carolyn Singleton (Chairman)

1. This application was heard at Bradford Combined Courts on 4^th August 2008. The Respondent was represented by Ms. Davies of counsel. The Appellant was represented by Ms. Broughton of counsel.

Background to the Case

2. In February 1994 the Appellant was dismissed from his employment with Camden Local Education Authority for gross misconduct involving a child.

3. He was referred to the Department of Health for consideration of inclusion on the Consultancy Service Index. He was notified of this on 27/10/1997 and he provided written representations as to his inclusion. However, his inclusion was confirmed by the Secretary of State by letter dated 15 May 1998. The Consultancy Service Index was the fore-runner of the Protection of Children Act list (the PoCA list).

4. When the PoCA list was created by the 1999 Act, the Appellant's case was reviewed and by a letter dated 23^rd June 2000, the Respondent informed the Appellant that he was considering transferring him to the new PoCA list. However, the letter was returned undelivered and no representations were made, therefore, by the Appellant. The Respondent considered the Appellant's case against the criteria set out in s. 3 of the 1999 Act and transferred him to the PoCA list.

5. In January 2008 the Appellant applied for a job working with children and a CRB check revealed his inclusion on the PoCA list. Once his new address was known, a letter was sent by the Respondent to the Appellant dated 21^st February 2008 informing him of his transfer to the PoCA list and stated…..

"…I am now writing to inform you that you now have the right of appeal under section 4 of the Protection of Children Act List to an independent tribunal (Care Standards Tribunal) against the decision to confirm you on the list.

If you wish to exercise the right of appeal you must make an application to the Tribunal within three months of the date of this letter."

6. The time limit for making an appeal expired on 22^nd May 2008.

7. By a letter dated 20^th May 2008, solicitors lodged an appeal form on behalf of the Appellant. Section 3 of that form deals with reasons for the appeal. It states, inter alia, "Give your reasons in full - you will only be able to amend your reasons at a later date with permission from the Tribunal." The only statement made in this section is "TO FOLLOW". An accompanying letter states that no details had been included because of problems in obtaining public funding and the solicitors had not seen any of the papers relied upon by the Respondent when he decided to place the Appellant on the PoCA list.

The Law

8. The Appellant's appeal lies under s.4 of the 199 Act and that appeal is governed by the Regulations. Regulation 4(4) (b) states that the procedure set out in Schedule 4 of the Regulations applies to such appeals. It states…..

1. Initiating an appeal

(1) A person who wishes to appeal to the Tribunal…………

must do so by application in writing to the Secretary.

(2) An application ……must be received by the Secretary no later than the first working day after the expiry of three months from the date of the letter informing the applicant of the decision…….

(4) An application under this paragraph must….

give the reasons why the applicant believes he should not be included in the PoCA list, or why he believes that the direction should not have been given, or why that direction should be revoked or varied, as the case may be;"

9. Regulation 4A of the Regulations provides;

4A Misconceived appeals or applications etc

(1) The President or nominated chairman may at any time strike out an appeal or application for leave mentioned in Regulation 4 on the grounds that -

(a) it is made otherwise than in accordance with the provision in these Regulations for-

(I) initiating that appeal…….

10. Regulation 35 of the Regulations provides;

35 Time

(1) The President or the nominated chairman may, having consulted the parties in the case, extend any time limit mentioned in these Regulations if in the circumstances -

(a) it would be unreasonable to expect it to be, or to have been, complied with; and

(b) it would be unfair not to extend it….

Case for the Respondent

11. The Appeal has not been made in accordance with the procedure set out in Schedule 4. Schedule 4 states that the written requirement to initiate an appeal must give reasons why the appellant believes he should not be included in the PoCA list. In this case, the appeal does not do so. It merely states "TO FOLLOW". Accordingly it should be struck out pursuant to Regulation 4A (1) (a).

12. The Appellant applies retrospectively for an extension of time pursuant to Regulation 35. However, the onus is on the Appellant to satisfy the Tribunal that time should be extended and he has identified no proper basis for contending either that it would be unreasonable to expect the time limit to have been complied with or that it would be unfair not to extend it.

13. The Tribunal was requested to strike out the appeal.

Case for the Appellant

14. The Tribunal was invited to note that on 21^st December 1998 the Appellant was acquitted of 10 counts of sexual abuse. Furthermore, an Employment Tribunal has found that Camden LBC unfairly dismissed the Appellant from his former employment.

15. The Appellant's appeal, albeit without detailed reasons, was lodged within the requisite timescale.

16. Under regulation 32(1) the Tribunal was invited to grant leave to the Appellant to amend the reasons he gave in support of his case.

17. The reasons for the Appellant's failure to include grounds of appeal were set out in the skeleton argument served on the day of the hearing. In summary they are:

•    The results of his unfair dismissal claim

•    His acquittal at the Crown Court

•    The undelivered letter offering the opportunity to make submissions on his inclusion on the PoCA list in June 2000

•    The circumstances of his discovery of his inclusion on the PoCA list

•    The length of time since the original allegations that led to his inclusion on the Consultancy Index

•    The lack of any further allegations against him since that time

•    The difficulties in assessing information to support his appeal. As the criminal trial was 10 years ago, the solicitors representing the Appellant at that time have destroyed their file. It is likely that his solicitors at the Employment Tribunal have done the same.

18. For these reasons the Tribunal was asked to dismiss the strike out application and grant the Appellant's application for an extension of time to file grounds of appeal.

Decision

19. The procedure for initiating an appeal as set out in Schedule 4 as above provides a detailed and specific format which, it says must be followed. It does not provide for any discretion as to how the appeal must be made. Part of that procedure is that reasons for the appeal must be given when the appeal is begun. Counsel for the Appellant argues that the grounds for appeal are not an intrinsic and essential part of the appeal. That is rejected by the Tribunal. Not only are the reasons an intrinsic part of the appeal, they are specifically set out as being essential in the appropriate Regulations. The wording is clear and unequivocal. They must be set out when the appeal is initiated.

20. The Tribunal accepts that the Appellant did not receive the initial letter in 2000 informing him that he had been placed on the PoCA list. However, he certainly received the letter dated 21 February 2008 informing of his inclusion and the three month time limit for appealing ran from that date. His appeal was not filed until 2 days before the expiry of that time limit. Notwithstanding that the appeal was, technically, in time, it contained no reasons for the appeal. Whilst the accompanying letter from solicitors refers to difficulties in obtaining public funding, it gives no information as to when they were instructed, what steps were taken to obtain public funding and what information was provided by the Appellant as to why he was on the Consultancy Index in the first place and why he thought he should not have been transferred to the PoCA list. Whilst the Tribunal understands that access to the file for the criminal proceedings cannot now be provided, the Appellant would, at the very least, have been able to provide them with enough information to put forward a proposed ground of appeal. So far as the Employment Tribunal is concerned, Counsel for the Appellant was instructed that it was "likely" that the original solicitors would have destroyed their file. No information was given to the Tribunal as to what steps had been taken to positively establish the position. Indeed, the question is "What has the Appellant done between receiving the letter from the Respondent dated 21^st February 2008 and 20^th May 2008 when the appeal form was sent?"

21. The Tribunal considered the application to extend time retrospectively pursuant to Regulation 35. That Regulation is set out earlier in this decision. The onus is on the Appellant to satisfy the Tribunal that time should be extended in accordance with that Regulation. For the reasons set out above the Tribunal considers that the three month time limit could have been complied with. The Appellant was aware of the circumstances of being placed originally on the Consultancy Service Index and was obviously aware of his subsequent acquittal at the Crown Court and the result of his unfair dismissal hearing. The Tribunal considers that those reasons could have been included in the appeal form and, therefore, it is not unreasonable to expect the appeal form to have been submitted within the requisite time including reasons for the appeal. The application to extend time is rejected.

22. The Tribunal considered the application under Regulation 32(1) to amend reasons for appeal. That Regulation allows amendment of reasons for appeal, with leave. It does not apply in this case. The Appellant does not want to amend reasons for appeal; he wants to provide them. He cannot amend something which has not been provided in the first place. The application is refused.

23. The three month time limit provided for in Schedule 4 of the Regulations is a generous one. It enables Appellant ample opportunity to provide the details necessary to comply with that Schedule in order to initiate an appeal. In this case, the Appellant failed to provide any reasons for the appeal within the time limit. The appeal is not made in accordance with the procedure set out in the Schedule. It is struck out pursuant to Regulation 4A (1) (a) of the Protection of Children and Care Standards Tribunal Regulations 2002.

24. The application is allowed.

25. In accordance with Regulation 4A (4) of the Regulations, where the President has made a determination to strike out an appeal, the Applicant may apply to the President for the determination to be set aside. Such an application must be made not later than ten working days after the date on which notice of the determination is sent to the Appellant and must be in writing stating the grounds in full.

Application to Strike Out granted

Dated 6^th August 2008

Carolyn Singleton

Nominated Chairman